HomeMy WebLinkAbout2005-3003.Gates et al.07-01-22 DecisionCrown Employees
Grievance Settlement
Board
Suite 600
180 Dundas St. West
Toronto, Ontario M5G 1Z8
Tel. (416) 326-1388
Fax (416) 326-1396
Commission de
règlement des griefs
des employés de la
Couronne
Bureau 600
180, rue Dundas Ouest
Toronto (Ontario) M5G 1Z8
Tél. : (416) 326-1388
Téléc. : (416) 326-1396
GSB# 2005-3003, 2005-3625, 2005-3628, 2005-3629, 2005-3630
UNION# 2005-0331-0077, 2006-0331-0002, 2006-0331-0005, 2006-0331-0007, 2006-0331-0008
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Gates et al.) Union
- and -
The Crown in Right of Ontario
(Ministry of Health and Long-Term Care) Employer
BEFORE Nimal V. Dissanayake Vice-Chair
FOR THE UNION Nelson Roland
Barrister and Solicitor
FOR THE EMPLOYER George Parris
Counsel
Ministry of Government Services
WRITTEN
SUBMISSIONS
December 4, 2006.
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Decision
The Board is seized with five grievances. For convenience of reference I adopt the
union’s categorization of the grievances, which is as follows:
1. The “Joan Gates” Group Grievance – (2005-3003)
2. The “Paul Wilson” Group Grievance – (2005-3625)
3. The “Meal Breaks” Union Grievance – (2005-3628)
4. The “Job Posting/Temporary Assignment” Union grievance – (2005-3629)
5. The “Overtime Payments” Union Grievance - (2005-3630)
This decision pertains to a motion by the employer that the grievances be dismissed on
the grounds that the union had failed to provide particulars in compliance with a Board order
dated May 12, 2006. Submissions on the motion were made in writing, supplemented by
briefs containing documents and legal authorities.
Contrary to the position taken by union counsel, I am of the view that in assessing the
adequacy of the particulars provided, the background and history between the parties in
relation to the grievances in question are very relevant. See Re Singh, 2001-1070,
(Abramsky) at p. 7.
The collective agreement provides:
22.1.4. The parties agree that principles of full disclosure of issues in dispute as
alleged by a grievance advanced by the Union on behalf of a member or
members, or the Union itself, and full disclosure of facts relied upon by
management in a decision that is subject to a grievance, are key elements in
amicable and expeditious dispute resolution process.
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22.1.5. The parties agree that at the earliest stage of the grievance procedure either
party upon request is entitled to receive from the other, full disclosure.
It is trite to say that the obligation to exchange information by way of particularization
continues following the referral of a grievance to arbitration. This is particularly so where
the Board has issued an order that particulars be provided. What constitutes adequate
particulars has been considered in numerous decisions of the Board. In Re Damani, 1581/95
(Gray) the Board described the obligation of a union as “to provide employer counsel with
written particulars of the facts that it and the grievor say demonstrate the discrimination
alleged. With respect to each act or omission alleged, the union particulars shall indicate
what was done or not done, when, where, by what means and by whom”. In Re Ross,
2690/96 (Herlich), the Board ordered that the “written particulars are to include not merely
legal conclusions, but in addition, the facts which the union and the grievor assert support
any such conclusion and demonstrate the discrimination or breach of the collective
agreement alleged. With respect to each act or omission alleged, the particulars shall indicate
what was done or not done, when, where, by what means and by whom and, to the extent
motivation may be a relevant fact, with what motivation”.
In Simon et al, 1390/00 (Mikus) at p. 4, the Board held:
This preliminary issue has been the subject of much litigation. The question of what
a party must provide to the other party before a case can proceed is of critical
importance to a party in determining how the case is to be presented or, whether it
ought to proceed at all.
This collective agreement recognizes the importance of each party knowing in
advance the case it must meet and has addressed that mutual need in Article 22.14.5
of the collective agreement. There is a reciprocal duty to provide that information.
The collective agreement does not, however, define what must be disclosed to the
other, for obvious reasons. It depends entirely on the pleadings. If specific facts are
provided in the grievance, the collective agreement requires the Employer to respond
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to those facts. There is no dispute between the parties on that issue. The dispute lies
in each party’s interpretation of the meaning of the word “particulars”.
The test for disclosure of information during the grievance procedure has been set
out in previous decisions and approved and applied consistently. That test is set out
in Children’s Aid Society supra) at page 262 as follows:
…Those criteria are that the requested information must be arguably
relevant, must be particularized clearly to avoid later disputes, cannot be a
“fishing expedition”, and must be clearly connected to the dispute at hand.
Finally, the production of the information requested should not cause undue
prejudice.
The issue in the instant case is whether the allegations have been particularized
sufficiently to put the Employer on notice of the facts giving rise to the grievance.
The Union has made a sweeping allegation that overcrowding at the Hamilton-
Wentworth Detention Centre is a violation of the Management Rights and Health and
Safety and Video Display Terminals provision of the collective agreement. It now
asks the Employer to provide information concerning the decision making process
that established the capacity of the facility and the steps it took to alleviate the
overcrowding.
It seems to me that before the Union can expect that information, it must provide the
Employer with more particulars concerning its allegations. The Employer is entitled
to know when the alleged overcrowding took place, where it took place, who was
involved and how it relates to Articles 2 and 9 of the collective agreement. Once the
Employer knows those elements of the Union’s case, it can determine what
information it should provide the Union.
For these reasons the union’s request for disclosure is denied at this time. The
Employer’s request for particulars is allowed. The Employer conceded its duty to
provide disclosure and had agreed to do so after it receives the particulars from the
Union. If the parties have further difficulty in determining what particulars or
disclosure is appropriate, I remain seized.
With those principles established by the Board jurisprudence, I turn to the specific issue
of a motion to dismiss a grievance for failure to provide particulars. In Re Singh (supra) at p.
6, the Board observed:
The GSB jurisprudence is clear that the failure to provide particulars, particularly
after an Order of the Board requiring them, may lead to dismissal of the grievance.
OPSEU (Klonowski), supra; OPSEU (Giannou), supra; OPSEU (Ross), supra. In
my view, however, dismissal of a grievance for failing to provide sufficient
particulars is an extraordinary remedy. I agree with Arbitrator Davie in Re Budget
Car Rentals Toronto Ltd., supra at p. 4 (Quicklaw) where she states that “an
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arbitrator should not lightly dismiss a grievance by reason of any “abuse of process’,
and outright dismissal of a grievance by reason of an alleged abuse of process should
only occur in the clearest of cases.” Depending on the facts, however, dismissal of a
grievance may be an appropriate remedy.
I agree that the outright dismissal of a grievance for lack of particulars is to be treated as
an extra-ordinary remedy and may appear to be harsh on the particular grievor. However,
that must be balanced with the broader interests of the parties, who by agreeing to articles
22.14.4 and 22.14.5, have clearly recognized that the full and timely exchange of information
relied upon by the respective parties in relation to a grievance is critical to the efficacy of the
grievance and arbitration procedure. Moreover, where the failure to provide particulars
occurs in the face of a Board order, the integrity of the Board’s authority also becomes a
significant consideration.
The employer set out the background of the instant grievances in its written submissions.
The union, while questioning the relevance of that background, did not dispute the factual
assertions. The grievances were initially scheduled for mediation on March 15, 2006, but
cancelled due to the lack of particulars by the union. The matter was rescheduled for
mediation-arbitration on May 9, 2006. On March 23, 2006 employer counsel wrote to the
union requesting that “all materials relating to this matter” along with “full particulars” be
forwarded at the union’s earliest convenience “to allow adequate time to prepare for the
mediation/arbitration dates scheduled for May 9, 2006 and June 12, 2006.”
By letter dated April 25, 2006 to the union, employer counsel referred to his earlier
letter, and reiterated the request for “full particulars and disclosure”. The letter went on to
state, “As you are aware, this matter is scheduled for mediation on May 9, 2006. If we do not
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receive the above by May 1, 2006, we will not be in a position to participate in mediation and
therefore the date will need to be cancelled.”
Despite the foregoing requests, the union failed to provide any particulars in advance of
the scheduled mediation. At the mediation scheduled for May 9, 2006 the employer sought
an order for particulars, and took the position that it was unable to engage in any mediation
process due to the failure of the union to provide particulars. By decision dated May 12,
2006, the Board ordered as follows: “In the circumstances, the union is hereby ordered to
provide to the employer full particulars with respect to each and every allegation forming part
of the grievances. These particulars are to be provided no later than June 7th, 2006”. It was
also ordered that the matter will continue on June 12th, 2006 as scheduled. Prior to June 7,
2006 the union requested from the employer, an extension of the time period allowed by the
Board order. By letter dated June 1, 2006, employer counsel agreed to extend the time period
from June 7 to July 5, 2006. This resulted in the cancellation of the mediation date of June
12, 2006. By way of letter dated July 5, 2006 and attachments, the union provided its
particulars. It is the adequacy of those particulars that is at issue in the present motion by the
employer.
The union’s statement of particulars dealt with grievances 1, 2, 3 and 5 together as a
group, and grievance 4 separately. The submissions of the employer in support of its motion
are very brief. It is convenient to reproduce the material submissions in full.
It is the Employer’s position that the Union’s particulars are wholly insufficient and
do not respond appropriately to the Board’s May 12, 2006 order.
The need for particulars is aptly illustrated in the Barillari case (GSB #2390/02)
wherein it states:
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It is a fundamental rule of equity and fairness that a party is entitled to know
what it is accused of in order to have an opportunity of defending itself. It is
trite to say that one cannot defend oneself, if it is not made aware of what
exactly it is accused of. In order to prepare its defense, - and I might add even
to consider admitting the allegations – it is imperative that particulars of the
allegations be provided well in advance of any litigation.
Furthermore, the case law regarding the production of particulars in proceedings at
the GSB is well settled and summarized in the recent decision of VC Briggs in
OPSEU (Union Grievance) and Ministry of Community Safety and Correctional
Services, GSB #3766/03. Additionally, Orders have been made by the GSB in the
context of group grievances indicating that particulars are required for each grievor
with respect to the issue of who, what, when, where and how (eg. Jan. 13, 2005
decision of VC Petryshen, GSB # 1999-0258).
The GSB has also dismissed grievances in the past that failed to comply with the
Board’s order to provide full particulars (see attached decisions).
The Grievances are not simple and involve a number of Grievors and an unknown
number of events over an unknown period of time. The Union has failed to provide
the “who, what, where, when and how” of the allegations on which it intends to rely.
As cited within VC Briggs’ earlier cited decision (at p. 20), “The allegations of fact
in a party’s particulars should be sufficiently comprehensive that it would be
unnecessary for that party to call any evidence if the opposite party were to admit the
truth of all the allegations of fact therein.”
With respect to Grievances 1, 2, 3 and 5 (as indicated in the Union’s July 5, 2006
correspondence), the Union has failed to provide full particulars regarding each
Grievor and each breach that is being complained of. The Union has suggested that
the Employer can in essence “check its records”. This is tantamount to a fishing
expedition and provides the Employer with no more guidance in responding to the
grievances than it did in the absence of particulars.
With respect to grievance 4 (as indicated in the Union’s July 5, 2006
correspondence), again, the particulars are vague, repetitive and contradictory.
Additionally, no particulars are provided with respect to any alleged breach of the
Collective Agreement. The particulars provided do not enable the Employer to fairly
respond to the grievances.
. . .
It is not for the Employer to guess the specifics of the Grievors’ allegations. The
Employer would have to do extensive research in order to respond to the vagueness
of these particulars. Similar to the Singh decision, “It is not up to the Employer to
guess, or comb its records to determine when these individuals were working, for an
unspecified period”.
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Union counsel in response submits that while the employer asserts that the union’s
particulars fails to comply with the Board’s order, it has not made a “detailed argument” to
establish how the particulars provided do not comply.
Union counsel asserts that the union, through the statements in the grievances themselves,
its statement of particulars and attached “annotated records”, has fully apprised the employer
of the “how, what, where and when” with respect to each grievance. He views the
employer’s position as a request for a statement of the union’s “theory of the case” and
submits that “particulars are normally assertions of factual states-of-affairs and would not
include the theoretical structure of a party’s argument”. Counsel submits that, nevertheless,
the union had set out in detail its “theory” for the employer.
Union counsel submits that grievances 1 and 2 are group grievances, that grievances 3
and 5 are policy grievances and further that grievance 4 is “essentially a policy grievance”.
He submits that in both types of grievances (policy and group) the central issue is “a
fundamental interpretation of an element of the collective agreement that potentially affects
some or all employees in the bargaining unit.” Citing case law, counsel urges the Board to
recognize that the grievances before it are “hybrid” grievances, “that is to say, the core legal
issue regards interpretation in these grievances; facts serve as the occasion giving rise to the
breach and serve as a concrete backdrop to the issues raised”. Counsel submits that “in order
to decide the interpretational issue, one really needs only one illustrative, concrete instance”
and that “once the interpretational issues have been resolved, individual remedy can then be
addressed on an empirical basis, assuming of course that the union is successful, in whole or
in part, on the interpretational issues”.
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Union counsel submits that the employer is fully aware of the theory of the group and
policy grievances and that therefore, that information is “entirely sufficient to litigate the
interpretational issues involved and provide some remedies”. He states that “For the rest of
it, i.e. complete remedy, the employer is in exclusive care and control of the documentation
that would reveal the full breadth of its breaches against individuals as they occurred from
time to time”.
As part of the response to the employer’s motion, union counsel submits that “there are
other documents exclusively in the possession of the employer, which will demonstrate
further additional breaches of the same sort already demonstrated by the union’s particulars
and documents.” He submits that further disclosure by the employer “may be necessary, at
most, for the discrete issue of remedy for some individuals” and that “the interpretational
issue and some individual remedies can be dealt with the particulars so far provided”. On
that basis the union seeks an order for production against the employer.
Citing Re Sidhu, (supra) counsel submits in the alternative, that should the Board find
“that the particulars are not complete and that something results from this”, rather than
dismiss the grievances, the Board should restrict the evidence that may be adduced by the
union.
In reply, employer counsel reiterated that the particulars provided by the union do not
meet the test established by the Board. Counsel submits that even in a group grievance, the
individuals grieving must at a minimum indicate what they themselves are grieving. With
regard to union grievances, counsel claims that the union has not provided particulars as to
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what facts gives rise to an “interpretational” issue. Nor has the union indicated what
provisions of the collective agreement requires interpretation. Counsel wrote:
The Union has essentially provided no particulars that indicate how there were
“systematic breaches” of the Collective Agreement. The Union has clearly indicated
that it has revealed all the instances of which it is aware. The union is essentially
stating: “we think you breached the Collective Agreement – we do not know when or
with respect to whom, but we know it and you know it, so please provide us with all
the possible documents we need to determine whether we have a case and how many
alleged breaches there may have been”.
Finally, employer counsel objected to the union’s request for disclosure at this stage.
One of the difficulties I have in determining the instant motion is this. The Board has before
it five distinct grievances, each filed separately and involving different allegations and
different provisions of the collective agreement. Yet the parties, for some unexplained
reason, have dealt with the grievances as a group, (particularly grievances 1, 2, 3, and 5) in
relation to their dispute as to disclosure and particularization. The union’s particulars are
very difficult to comprehend because they lump together four grievances, without indicating
which particulars pertain to which grievance. In their written submissions neither counsel
deals with each grievance separately. For most part submissions of counsel are made in
general. As a result, I have had to go through the union’s particulars very closely and
attempt to sort out, as best as I could, if it includes particulars that relate to each of the
grievances and to consider the respective submissions based on my findings on the
particulars on each grievance.
With respect to union counsel’s argument that the policy and group grievances involve
interpretational issues, I make the following observation. Every grievance that comes before
an arbitrator in a sense involves the interpretation and application of some provision(s) of the
collective agreement and/or statute. The difference is that in some cases the parties have no
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disagreement with regard to the appropriate interpretation of the relevant provision(s). Then
the dispute is limited to the facts. In other cases the parties may disagree on the proper
meaning of the relevant provisions. However, even in these circumstances, the interpretation
issue does not arise in a vacuum. It arises, whether the grievance is an individual, group or
union grievance, from certain alleged facts. This would be so except, perhaps in a case
where the parties by agreement puts a stated case of interpretation to the Board. In every
other case, what a provision means and whether it has application in the particular
circumstances depends on the facts of each case. Therefore, the requirement for
particularization applies in every grievance whether it be an individual, group or union
grievance, although the nature and the extent of those particulars may vary depending on the
type of grievance.
Having regard to the legal principles and my consideration of the submissions of the
parties, I find as follows:
(1) The Joan Gates grievance (2005-3003)
This is titled as a group grievance filed on behalf of and signed by seven
individuals. The statement of grievance reads:
“We grieve that management of WMHC is in violation of articles 2 and 3 of the OPS
collective agreement, and is in violation of the Ministry (Government of Ontario)
conflict of Interest Policy and Guidelines in that the practice of hiring unclassified
staff is flawed and improper. This type of management practice has led to a hostile,
poisoned and unhealthy work environment”.
The articles alleged to have been violated, articles 2 and 3, provide as follows:
ARTICLE 2 – MANAGEMENT RIGHTS
2.1 For the purpose of this Central Collective Agreement and any other
Collective Agreement to which the parties are subject, the right and
authority to manage the business and direct the workforce, including the
right to hire and lay-off, appoint, assign and direct employees; evaluate and
classify positions; discipline, dismiss or suspend employees for just cause;
determine organization, staffing levels, work methods, the location of the
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workplace, the kinds and locations of equipment, the merit system, training
and development and appraisal; and make reasonable rules and regulations;
shall be vested exclusively in the Employer. It is agreed that these rights
are subject only to the provisions of this Central Collective Agreement and
any other Collective Agreement to which the parties are subject.
ARTICLE 3 – NO DISCRIMINAITON/ EMPLOYMENT EQUITY
3.1 there shall be no discrimination practiced by reason of race, ancestry, place
of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation,
age, marital status, family status, or handicap, as defined in section 10(1)
of the Ontario Human Rights Code (OHRC).
3.2 There shall be no discrimination or harassment practised by reason of an
employee’s membership or activity in the Union.
3.3 It is recognized that in accordance with section 14 of the OHRC, the
Employer’s employment equity program shall not be considered a
contravention of this article.
In the union’s statement of particulars, grievances 1, 2, 3 and 5 are dealt with together.
The totality of its statement in regard to those four grievances is as follows:
Grievances 1, 2, 3 and 5
What we are providing are copies of various scheduling and payroll documents, with
annotations (all of which form part of the particulars). These documents illustrate
both unpaid overtime (for time worked, i.e. worked as overtime but not paid as such)
and deductions of “unpaid” lunch breaks that were not taken, but were “deemed”
(wrongly) by the Employer (and hence deducted). These breaches occurred where,
for example, employees work two consecutive 8 hour shifts, but were not paid time
and one-half for the second shift. The “meal-break-deeming” breach typically
occurred where an employee worked a 12 hour shift (in which an actual lunch break
is taken [and, correctly, is not paid] but then the employee accepts a second shift.
This time, it is a four-hour shift in which the employer, falsely, deems a lunch break
to have been taken by the employee thereby deducting one-half hour’s pay, although
during that half-hour the employee worked and did not take lunch. To add to the
problem, the employer not only deducts the 5 hours in the 4 hour shift, it also fails to
pay at the overtime rate, treating the 4 hours (really 3.5 hours with the deemed lunch
break) as straight time.
As mentioned elsewhere in this letter, we have documentation (supplied herewith )
that illustrates the various categories of breaches; however, the employer is the only
repository of the entire documentary record (if any party is at all) and we request that
such similar documentation be supplied in full and, therefore, reserve the right to
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provide such further instances of breach as may, from time to time, be revealed upon
full disclosure.
The Union provides the following examples derived from the documents we happen
to have available. For example, Ruth Wiley had .5 hours deducted from her pay,
hence her “Reg. Pay” for the pay issued on 01/23/2006 states “67.50” hours versus
68.00 that should have been paid. (A similar set of facts occurred on January 29,
2006). Additionally, and arising from the same pay period, Ruth Wiley was not paid
at the 1.5 overtime rate for a shift she worked on February 11, 2006. This example is
verified by the schedule respecting Ms. Wiley for the relevant day and week, which
contains other examples of the same (all of which are attached hereto).
Similar breaches are illustrated from the other documents dealing with yet other
grievors in the group, e.g. Kathy Harvey, C. Ross, Valerie Conversano (who, for
example, was paid straight time on January 5, 2006, when she should have been paid
overtime for double shift for that shift and similarly so for January 22 and January
25, January 30, February 6, February 23, March 9, March 10, March 20 2006); David
L. Clarke (who was paid straight time when he should have been paid overtime and
whose pay was docked .5 hours for a meal break not taken (again on the dates as
indicated on the documents provided]); Michelle T. Williams (whose pay had .5
hours deducted for a meal break [not taken] on a 4 hour shift [March 9, 2006] and
who was paid straight time for overtime work done on March 14, 2006); Kim Swain
who was not paid overtime on January 3, January 23, January 31, March 13, March
28, April 6 and whose pay for April 1 suffered a .5 hour deductions for a meal break
not taken.
There are many other examples even in the documents provided. The Union expects
further examples in the documents to be disclosed by the Employer.
The gist of the allegation in the Joan Gates grievance is that the employer had violated
articles 2 and 3 as well as the Government’s own Conflict of Interest Policy and Guidelines
by its practice of hiring unclassified staff. It is clear that the statement of the grievance, while
alleging that the employer’s practice of hiring unclassified staff violated the management
rights and no discrimination provisions of the collective agreement, does not specify when
such hirings occurred, who was hired, or how such hirings violated the collective agreement
or any policy. Similarly, the particulars reproduced above do not even address the issue of
the employer’s practice of hiring unclassified staff, let alone provide the who, what, when
and where. Attached to the particulars were two documents, Conflict of Interest and Post-
Service Directive consisting of 32 pages, and a copy of Regulation 435/97 amended to
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270/05 on Rules of Conduct for public servants enacted under the Ontario Public Service Act.
There is not even a reference to these documents in the particulars, let alone an assertion of
what provisions of these documents were contravened, when, how or by whom. Even if I
treat this grievance as a hybrid policy/group grievance as the union urges me to, the union has
failed to provide any particulars in relation to grievance 1, which even comes close to
satisfying its obligation pursuant to the Board order. In the circumstances, the employer’s
motion is allowed and grievance no. 1, being the group grievance in GSB file 2005-3003 is
hereby dismissed.
(2) The Paul Wilson grievance (2005-3625)
This is also formally designated as a group grievance and is signed by 63 individuals.
The statement of grievance reads:
We grieve that the employer is not applying in a just manner Article 31.A.8.1. in
relation to credit amounts earned toward attendance and is unjustly calculating hours
worked towards progression through Steps of Salary Schedules in relation to Part-
Time Unclassified employees as per the Collective Agreement and as per past
practice of the Centre.
Article 31.A.8.1 reads:
Employees who work thirty-six and one-quarter (36-1/4) or forty (40) hours per week
shall earn attendance credits of one and one-quarter (1-1/4) days for each calendar
month of full attendance or for each calendar month of leave of absence granted
under Article 31A.9 (Pregnancy and Parental Leave). Attendance credits may be
used for protection purposes only in the event that an employee is unable to attend to
his or her official duties by reason of illness or injury. However, accumulated
attendance credits earned prior to April 1, 1978 may be transferred to the Classified
Service when the appointment to the Classified Service is made from continuous,
unbroken, full-time Unclassified Service.
The grievance refers to article 31.A.8.1 and the “past practice’ of the centre. It does not
set out what “manner” the employer followed contravened the collective agreement, nor when
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and how that violated the rights of any of the grievors who are signatory to the grievance. It
is clear that the grievance itself provides the employer with no particulars.
As with grievance 1, the union’s statement of particulars fails to even address the alleged
violation in grievance 2. Specifically, there is no indication of what “practice” or “manner”
the employer followed in applying article 31.A.8.1, or how and when that violated the rights
of the individuals who have grieved. The union has attached to its statement of particulars,
employee work schedules for various pay periods (43 pages), a group of attendance forms for
various employees (58 pages), a group of pay stubs for various employees (30 pages) and a
group of premium payment reports (13 pages). No reference is made to any of these
documents in the particulars to indicate how, if at all, the documents relate to the grievance
2. Despite my best efforts, I could not make a connection between any of the documents and
the alleged violation of article 31.A.8.1. Similarly, while the grievance refers to a “past
practice”, no particulars have been provided as to what that past practice allegedly was.
In the circumstances, I find that the union has not complied with the Board’s order for
particulars. Grievance 2 is also hereby dismissed.
(3) The meal breaks grievance (2005-3628)
This is designated as a union grievance and states:
The Ministry, Whitby Psychiatric Hospital, has violated the collective agreement
by deducting employees’ pay for unpaid meal breaks that were never scheduled or
taken.
Clearly the grievance itself contains no particulars as to what deductions were made,
from which employee(s) or when such deductions took place.
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In this instance, the union does attempt to address the meal break grievance in its
statement of particulars. It is asserted that the documents attached illustrate “deductions of
unpaid lunch breaks that were not taken, but were deemed (wrongly) by the employer (and
hence deducted)”. The particulars provide “examples” of how the breaches occurred. Again
it provides circumstances as to when “typically” the breaches occurred. The particulars name
certain employees who allegedly were docked time for meal breaks not taken, namely, David
l. Clarke, Michelle T. Williams and Kim Swain. The number of hours lost by each of the
three employees, as well as the date(s) on which that occurred is particularized. Union
counsel then states “There are many other examples even in the documents provided. The
union expects further examples in the documents to be disclosed.”
Considering that we have here a union grievance alleging that the employer had wrongly
interpreted and applied the collective agreement in relation to meal breaks, I agree with union
counsel that the particulars it has provided with respect to 3 employees, as illustrating the
alleged violation, sufficiently apprises the employer of the case it has to meet. The lack of
detailed particulars with regard to all employees will not prejudice the employer’s preparation
of its defence. A union grievance can cover a large number of employees in the bargaining
unit or indeed every employee in the bargaining unit. It will be wasteful to require that the
union provide detailed particulars with respect to each and every employee who may be
covered by the union grievance. As suggested by the union, in the circumstances it is
appropriate that the interpretational issue be determined on the basis of the employer’s
treatment of the named grievors. If the union is successful, the parties can determine whether
the decision confers any entitlement to any other employees in the bargaining unit and failing
agreement return to the Board.
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Therefore, the employer’s motion fails as far as the meal break grievance is concerned.
(4) The job posting/temporary assignment grievance (2005-3629)
This is also a union grievance and reads:
The Ministry, Whitby Psychiatric Hospital, has violated Articles 8 and 6 of the
Collective Agreement by not posting temporary bargaining unit positions six (6)
months duration or longer, or less than six (6) months when recruiting from outside
the bargaining unit. The Ministry has violated its own Conflict of Interest Guidelines
by condoning what appears to be actual, potential or perceived conflicts of interest in
the hiring of management’s family members to fill temporary vacancies.
The grievance on its face makes two allegations. First, that the employer has violated
articles 8 and 6 of the collective agreement by not posting temporary bargaining unit positions
for six months or longer, or for less than six months when recruiting from outside the bargaining
unit.
Second, there is an allegation of a violation of the conflict of Interest Guidelines in
relation to the hiring of management’s family members to fill temporary vacancies. The union’s
statement of particulars provides a number of “examples’, identifying names and dates when the
alleged violations occurred. While I find that this information is not clear and detailed as one
may expect, I find that it is sufficient as far as the particular alleged violations are concerned.
However, the union should not be entitled to pursue the grievance in regard to any instance not
particularized. Unlike the meal break and overtime grievances, the present grievance, while
framed as a union grievance, is not about the employer’s general interpretation and application of
the collective agreement. The grievance is about specific hirings of particular individuals, the
circumstances of which would be different in each case. Any situations not particularized will
not be amenable to resolution on the basis of an interpretation of the collective agreement. The
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unique facts of each case would be central to any determination. The employer will not be able
to prepare its defence without particulars as to a particular hiring the union is taking issue with.
Therefore, the employer would be prejudiced by the lack of particulars.
Therefore, while this grievance may proceed, the evidence will be restricted to the
instances which have been particularized.
(5) The overtime payments grievance (2005-3630)
This is also a union grievance and reads:
The Ministry, Whitby Psychiatric Hospital, is violating the collective agreement,
specifically, but not exclusively, by not paying the proper overtime wages to
classified and unclassified employees for all hours worked beyond regular shifts.
The particulars provided by the union with regard to this grievance are of the same nature
as that in the meal break grievance, except that details including the dates of the alleged
breach are provided with regard to six employees, as “examples”. For the same reasons as
with the meal breaks grievance, I find that in this union grievance also, the employer has been
provided with sufficient particulars, so as to be in a position to prepare its defence. The
motion fails in this instance also.
As noted before, union counsel sought an order for production as part of his response to
the employer’s motion. The union is entitled to disclosure with regard to the grievances that
have been found to be sufficiently particularized. However, its request is vague in the extreme.
Besides seeking “disclosure”, no indication is made as to what it is that the union wishes
disclosed. Therefore, at this point its request for an order is denied. That does not preclude the
union from making a further request with some specificity for disclosure from the employer.
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Dated this 22nd day of January 2007 at Toronto, Ontario.
Nimal Dissanayake
Vice-Chairperson